Health Enquiries and the Equality Act

Pre-Employment Health Enquiries under the Equality Act 2010

One of the most controversial and talked about changes under the Equality Act 2010 (the Act) is the provision of section 60, which operates to prevent an employer from asking questions about the health of a work applicant.

Pre-employment health questionnaires are, for many of our clients, an integral part of the recruitment process. There are a number of legitimate reasons why they are used; to establish whether any adjustments are needed for the interview, for example; or to identify  whether an applicant has a condition which could make it impossible for them to carry out the job. Take for example the case of an applicant who has developed advanced osteoarthritis and applies for a job working as a packer in a warehouse.  If the employer’s products are heavy and bulky in weight, it would be unlikely that the candidate would, with their condition, be able to fulfil the requirements of the job.

During its consultation stage on the Act, the Government took advice from a number of different lobby groups, including RADAR, the UK’s largest disability campaigning organisation. The feedback received was that pre-employment health screening and questionnaires discourage a large number of disabled people from applying for work, especially persons with mental health disabilities who are still stigmatised.  

So what is it that the Act prevents?

As a starting point, it expressly states that a person to whom an application for work is made must not ask about the health of an applicant before offering work. There are limited exceptions  where it is permissible to ask about the health of a candidate before offering them work. These include, finding out whether the candidate is able to carry out a function intrinsic to the job, as in the abovementioned example; or establishing whether adjustments are needed for the interview process. However, there are risks involved in asking the questions.

The Act states that an employer’s reliance on information given in response may be a contravention of a relevant disability provision and such reliance would enable the candidate to bring proceedings before an employment tribunal. The key, therefore, if you do opt to ask any questions about health, for any of the limited reasons, is to make sure that you are in a strong position to demonstrate that you have not relied on this information in your assessment of the individual.

What then can you do? 

Firstly, to filter out unsuitable applicants, rather than asking about their health before an interview or assessment, you could place the ball in their court by providing them with enough information about the job to allow them to make an informed decision about whether they are able to do it. In the example used above, if the employer who ran a warehouse provided, with the application form, a brief description of the work involved, details of the type of products that it deals with, a potential applicant with osteoarthritis may recognise the difficulties and decide not to apply.

Secondly, and as suggested by the Equality and Human Rights Commission (EHRC) in their guidance notes on the Equality Act, if you ask a candidate a question to see if any adjustments are needed for the interview, do this on a separate document and not on the application form itself. The EHRC recommends that you then keep this information separate from the rest of the application process.

You may decide to ask applicants when inviting them to an interview if they have any disability related requirements and provide details of the interview to help them decide if this would be necessary.

If your organisation is large enough, you should keep the information away from the people carrying out the interview. In this way, it would be possible to defend any assertion that they relied on the information if  the applicant was rejected.

Thirdly, try to avoid asking unnecessary, superfluous, or even worse, personal questions which will not assist in establishing whether or not the candidate is able to carry out the work. Questions about age, trade union membership, marital status etc crop up every now and again but in reality, you probably do not need this information. Keep questions targeted to the requirements and needs of the job and how the candidate can meet them. This will also assist you in defeating other potential claims of discrimination.

Finally, try and build objectively justifiable criteria into the recruitment process. Tests which measure skills and abilities are a useful way of achieving this. If your decisions are then questioned, you will be in a stronger position to justify your final choice. 

For further information about employment law matters, contact Amanda Okill, Employment Law Specialist at Furley Page.